Delhi District Court
State vs . Halima on 24 November, 2018
1
IN THE COURT OF METROPOLITAN MAGISTRATE03,
SOUTHEAST DISTRICT, SAKET COURTS, NEW DELHI
Presided by: Ms. Vasundhara Azad
State Vs. Halima
FIR No. 405/05
Police Station: H. N. Din
Section: 448/380/506/34 IPC
JUDGMENT
1. Cr Cases of the case : 91280/2016
Date of commission of
2. : 16.06.2005
offence
Date of institution of the
3. : 23.12.2009
case
4. Name of the complainant : Sh. Narender Pratap Gupta
5. Name, parentage and : (1) Halima Khatoon
address of the accused W/o Sh. Parvez Alam
persons H.NO.R193, Gali NO.5 Joga Bail Extn.
Okhla, New Delhi.
(2) Arfa W/o late Sh. Aquil Ahmad R/o
Village, Kaithara, Aabdalpur, Bulandshahar,
U.P.
(3) Aisha Begum
W/o sh. Nasim
R/o H. No. B177, Kabutar Market,
Seelampurt, Delhi.
(4) Dilshad Ahmad
2
S/o Sh. Kafeel Ahmad
R/o Village, Kamalpur, post Dariyapur,
Bulandshahar, U.P
(5) Parvez Alam
S/o late Sh. Nisar Ahmad
R/o R193, Gali NO.5
Offence complained or
6. : U/s. 448/380/506(ii)/ 34 IPC
proved
7. Plea of accused persons : Pleaded not guilty
8. Final order : Conviction: Parvez and Dilshad U/s 448 IPC
9. Date of final order : 24.11.2018
1. Briefly stated, it is the case of the prosecution that on 10.06.2005 and on 13.06.2005, at house No.6, Devi Bhawan Basti, H. N. Din within the jurisdiction of PS H. N. Din accused persons Halima, Isha, Parvez, Dilshad, Jamila and Afra in furtherance of their common intention committed house trespass in the house of the complainant Narender Pratap Gupta, committed theft of his household articles and also threatened the complainant with dire consequences in order to ensure that the complainant does not reclaim the property in question.
2. Vide order dated 02.08.2013, accused persons were charged with offences under Sections 448/380/506(ii)/ 34 IPC to which accused persons pleaded not guilty and claimed trial. Prosecution against accused Jamila were abated vide order dated 26.09.2014 on account of her death.
PROSECUTION EVIDENCE 3
3. Prosecution has examined a total 14 witnesses in order to prove its case. In brief, the testimonies of the prosecution witnesses are as follows:
3.1 PW1 Sh. Narender Pratap Gupta is the complainant who has deposed that he is the owner of the property in question that is an ancestral property that had devolved on him after the death of his mother. PW1 has stated that he had locked the same premises in 2005 and gone to Virindavan. When his brother Mahender Gupta informed him that some persons were residing in the property in question, he went to the concerned property and noticed that three ladies and two male persons were inside it.
3.2 PW2 W/Ct Santosh has proved disclosure statement of accused Arfa and Jamela as ExPW2/A and ExPW2/B respectively.
3.3 PW3 HC Swatantra Kumar alongwith SI Manoj Kumar had gone to the spot upon receipt of DD entry no.16A, where he met the complainant and recorded his statement as ExPW1/A. PW3 has proved rukka as ExPW3/A that was handed over to him for registration of FIR. He has also proved arrest and personal search memo of the accused Dilshad as ExPW3/B and ExPW3/C respectively.
3.4 PW4 Sh. Mahender Kumar Gupta is an eyewitness to the incident and has testified that three women and two men have illegally grabbed property of his cousin/complainant Narender Gupta. He has stated that he alongwith complainant had asked the accused persons to vacate the property in question to which they had stated that they had purchased this property from one lady whose name they did not disclose.
3.5 PW5 Sh. Vipin Kumar is the photographer who has proved the 4 photographs of the spot in question which were taken by him at the instance of police officials and which are ExP1 to P18 (colly).
3.6 PW6 Lukman is also one of the eyewitnesses to the accident who has deposed that the domestic articles of the complainant were scattered in the gali outside the house of the complainant where the police official alongwith three ladies, Mahender Gupta and neighbor of the complainant were present. PW6 has also deposed that he was informed by persons present on the spot that three ladies present there had broken the lock of the door of the complainant and had thrown his domestic articles outside. He has also deposed that three ladies were quarreling with Mahender Gupta.
3.7 PW7 Inspector Dinesh Kumar has deposed that upon receipt of DD No.34A, which was marked to him, he alongwith Ct. Satender reached the spot where he met one Parvez Alam and whom he interrogated. PW10 has correctly identified accused Parvez Alam in court.
3.8 PW8 Shabbo is the maidservant who has deposed that she used to go to Devi Bhawan twice a day for work. On the day of incident, she found the door of the place in question unlocked as well as gathering of public persons, who revealed that some persons had broken the lock of the door in question.
3.9 PW9 SI Neeru Bhapuni has deposed that she alongwith SI Jitender Singh had arrested accused Aysha and had conducted her personal search vide memo Ex PW9/A and ExPW9/B respectively. PW9 was unable to identify accused Aysha in court as accused Aysha was wearing burkha on the day of arrest.
3.10 PW10 HC Bimla has testified that on 14.06.2005, two ladies who 5 arrested by IO vide arrest memos ExPW10/A and ExPW10/B. PW10 was unable to identify accused Jamila and Arfa in court as they were wearing burkha on the day of arrest.
3.11 PW11 SI Sushila was the duty officer who registered the present FIR and has proved the same as ExPW11/A. 3.12 PW12 HC Om Prakash has deposed that HC Surender arrested accused Parvez Alam and Halima Khatoon on 21.11.2015 vide arrest memo ExPW12/A and ExPW12/B respectively.
3.13 PW13 SI Jitender Singh has testified that accused Parvez, Aysha and Halima were arrested vide arrest memos already Ex PW12/A, ExPW9/A and ExPW12/B respectively. PW10 also prepared the chargesheet in this matter.
3.14 PW14 Inspector Manoj Kumar Sharma is the IO who has deposed with respect to inspection done by him in the present matter.
STATEMENT OF THE ACCUSED
4. Thereafter, PE was closed and statements of accused persons were recorded under section 313 Cr.P.C wherein all the incriminating evidence/documents were put to them one by one, they denied all as incorrect and submitted that they were innocent and they had not committed alleged offence.
Accused persons opted not to lead defence evidence.
ARGUMENTS
5. Learned APP for the State has argued that the testimonies of all prosecution witnesses have established guilt on the part of accused persons and that they be convicted for offence under Section 448/380/506 (II)/34 IPC. On the 6 other hand, it has been argued by the learned counsel for accused persons that accused persons are innocent as there is no evidence, which will prove guilt of accused persons to the hilt.
ANALYSIS AND FINDINGS
6. The record has been thoroughly and carefully perused. The respective submissions of learned Assistant Public Prosecutor for the State and learned counsel for the accused have been considered.
Charge u/s 448 IPC
7. House trespass for which punishment is provided in section 448 IPC is defined in section 442 IPC as, "Whoever commits criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling or any building used as a place for worship, or as a place for the custody of property, is said to commit 'housetrespass'." Criminal trespass has been defined in Section 441 IPC as, "Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence is said to commit 'criminal trespass'."
8. Thus, it is necessary for an offence punishable u/s 448 IPC that essential ingredients of criminal trespass and house trespass must be fulfilled. For 7 commission of criminal trespass three essential ingredients have to be fulfilled which are as follows:
1) entry into or upon property in possession of another;
2) if such entry is lawful then unlawfully remaining upon such property;
3) such entry or unlawful remaining must be with intent: (i) to commit of offence or; (ii) to intimidate, insult or annoy the person in possession of the property.
Thus, it is important that the property trespassed must be in actual possession of some person other than the alleged trespasser. It is necessary for the prosecution to prove the exclusive possession of the complainant upon the property trespassed. It is also settled law that the question of title is not to be raised on a plea of possession as the offence is against possession and not against ownership of property. The word 'possession' used in the definition of 'criminal trespass' as has been observed in a catena of judgments includes both 'actual possession' as well as 'constructive possession'. In Sant vs The Union Of India AIR 1962 HP 1, the Himachal Pradesh High Court observed that, " the concept of possession embraces both actual and constructive possession. Possession may exist in law but not in fact and such possession is termed as constructive. The Roman lawyers distinguished possession in fact as possessio naturalis and possession in law as possessio civilis. It is trite law that every owner of property is presumed to be in possession of it unless the contrary is proved. The word 'possession' as used in the aforesaid section is, therefore, wide enough to include not only actual and physical but also constructive possession. The legislature must be deemed to have been aware of the legal connotation of the word 'possession' when it used that word in Section 441, I. P. C. If the intention of the Legislature had been that actual and physical possession should be an ingredient of criminal trespass nothing would have been easier for it than to have qualified 8 the word possession with the words 'actual and physical'...... annoyance will be caused to the owner of vacant property if the same is trespassed upon with a view to oust him and he is not in collusion with the trespasser. He may have to take steps to recover possession and be involved in litigation and it cannot he gainsaid that to be involved in litigation is no pleasure".
9. Applying the aforementioned test in the present case to determine the aspect of possession of the complainant, from the testimonies of the complainant/PW1 and PW4 i.e. Sh. Mahender Kumar Gupta, it stands established that the complainant had if not actual possession, constructive possession of it. Therefore, even though the complainant was not in actual possession of the property trespassed upon, the act of trespass committed by the accused persons did cause annoyance to him. In Sant vs The Union Of India AIR 1962 HP 1, the Himachal Pradesh High Court also observed that, "If trespass upon vacant land causes annoyance to its owner such trespass may also be committed with intent to annoy him. There undoubtedly is a distinction between the commission of an act with intent to annoy and the commission of an act with knowledge that it will or is likely to annoy. Unless there has been a declaration of the intention the intent will have to be gathered from the conduct of the accused and the surrounding circumstances and while an intent to annoy would not necessarily be deducible from knowledge that a certain act is likely to cause annoyance such knowledge may be taken into consideration in ascertaining the intent of the accused. An owner of property which is not in his actual possession may also in certain circumstances be the victim of criminal trespass. Thus, there is nothing in the context to restrict or control the wider connotation of the word 'possession' as used in the earlier portion of the section. On a construction of the section it 9 cannot be said that in order to constitute criminal trespass it is absolutely necessary that the person in possession must be in actual and physical possession".
10. Ld. counsel for the accused persons has argued that the element of 'criminal trespass' does not exit in the factual scenario of the case at hand as the accused persons had taken the property on rent from Aysha who had been sold this property by deceased Smt. Shakuntala. The rental agreement to that effect between Aysha Begum and Halima Khatoon is Mark D. This being the scenario, it is noted that there is nothing on record to prove the transfer of ownership of the property in question from deceased Shakuntala to Aysha Begum which would lend sanctity and credence to the authority of Aysha Begum to further lease out this property and thereby discredit possessory rights of the complainant over this property. Therefore, this argument of learned counsel for the accused persons does not hold much weight.
11. The crucial testimony to be considered at this juncture is that of PW1 who has testified in his examinationinchief that on the date of the incident, he found three women and two men present on his property. PW1 has clearly testified that he cannot identify the three women who were present on his property on that day as they were wearing burkha. However, upon being led by ld. APP with the permission of the court, PW1 identified Halima and Aysha present in court as the women who were present that day on his property. It is a matter to be noted that at another juncture in his testimony, PW 1 has stated that only two women were present on his property on the date of the incident. Although, PW 1 has been unequivocal in terms of identifying accused Dilshad and accused Parvez who had 10 allegedly trespassed upon his property, there are inherent discrepancies in his testimony with respect to presence as well identification of accused women who were present on the spot. Therefore, although the factum of presence of accused Dilshad and accused Parvez on the spot has been established by PW1, the same has not come out in full force in an unequivocal manner with respect to accused Halima, Aysha, Jamila and Aarfa.
12. Therefore, although the factum of house trespass by accused Dilshad and accused Parvez stands established, the same does not stand proved with respect to accused Halima, Aysha and Aarfa.
13. Hence, charge under S.448 IPC stands proved against accused Dilshad and accused Parvez.
Charge u/s 380 IPC
14. Section 380 IPC prescribes punishment for theft in a dwelling house. Theft is defined under Section 378 IPC as per which the essential ingredients to constitute an offence under Section 380 IPC are as follows:
1. Intention to take dishonestly
2. The property shall be movable property.
3. The property shall be taken out from the possession of any person without his consent.
4. There should be some moving of the said property to such taking.
5. The theft should have been committed in a dwelling house or place used for safe custody of property.
1115. From perusal of the record as well examination of the testimonies of the witnesses, it is observed that there is no direct evidence of theft. The witnesses cited have not seen the accused persons committing the alleged offence. Not even a single witness has been cited by the prosecution who can say that he saw the accused persons committing theft.
Therefore, in the present case, charge under S.380 IPC does not stand proved against the accused persons.
Charge u/s 506 (II) IPC
16. For making an offence under section 506 IPC, it is essential that the requirements of section 503 IPC are fulfilled. The requirements of section 503 are as follows:
(a) A person threatens another with injury;
(b) injury is to his person, reputation or property, or to the person or reputation of any one in whom that person is interested;
(c) intention is:
(i) to cause harm to that person, or
(ii) to cause that person to do any act which he is not legally bound to do, as means of avoiding, execution of such threats, or
(iii) to cause that person to omit to do any act which that person is legally entitled to do, as the means of avoiding execution of such threat.
17. Besides the above stated three requirements as stated in section 12 itself, to make out an offence under section 506 IPC, it is also required that the alleged threats also caused alarm to the complainant. Mere threat in itself is not an offence. If the person advancing such threats, is unable of executing them, and if the person to whom the such threats are advanced, does not get alarmed by raising of such threats alone, no offence is made out. The court would like to refer to certain judgments.
In Amitabh Vs. NCT of Delhi 2000 CRI. L.J.4772 the Hon'ble Delhi High Court observed that "The averments made in the FIR and in the case diary statement of the complainant against the petitioners also do not satisfy the essential ingredients of the offences punishable under section 506/509 IPC. The threats alleged to have been given to the complainant Ms. Bharti by the petitioners do not fall within the definition of criminal intimidation in as much as the complainant has nowhere stated that the threats given by the petitioners caused an alarm to her. It is well settled that mere threat is no offence". In Vasant Waman Pradhan Vs. Dattatraya Vithal Salvi 2004(1) Mh.L.J, Bombay High Court observed "Section 506 revolves around the definition given in section 503 of Indian Penal Code which reads:
"Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation."
In judgment titled Surinder Suri Vs State of Haryana 1996(2) RCR the Hon'ble Punjab and Haryana High Court observed, "The gist of the offence 13 is the effect which the threat is intended to have upon the mind of the person threatened. The threat must be one which can be put into execution by the person threatening. A threat, in order to be indictable must be made with intent to cause alarm to the complainant. As for instance, mere vague allegations by the accused that he is going to take revenge by false complaints cannot amount to criminal intimidation".
18. Thus the law is settled that mere empty threats do not constitute the offence punishable under Section 506. The allegations of the complainant are only that the accused persons gave threats. There is no mention that the said threats caused alarm to the complainant. The witnesses examined by the complainant have also not deposed that any such threats caused alarm to the complainant. In the absence of any evidence or deposition with regard to the alarm to the complainant in consequent to the alleged threats, the offence under Section 506 IPC is not constituted. Hence, offence punishable u/s 506 IPC is not made out against any of the accused. Therefore, this Court holds that the complainant has failed to prove prima facie case for offence under section 506 of IPC against the accused persons. Here the allegations have been hurled at random in a scattered way. No ingredients as indicated by section 503 defining criminal intimidation has been brought in picture by the complainant. The intention is very much lacking which is the soul of the definition of criminal intimidation. The intention can be gathered by the words uttered, sentences uttered and the act that follows such utterances. It can be gathered by surrounding circumstances also.
19. In view of foregoing reasoning, the court is of the view that the prosecution has failed to prove its case against all accused persons beyond reasonable doubt 14 with respect to charge framed under section 506 (II)/34 IPC. Hence, accused persons stand acquitted from the charges framed U/s 506 (II) /34 IPC.
CONCLUSION
20. From the evidence on record, I am of the opinion that:
i) the prosecution has proved its case beyond reasonable doubt against accused Dilshad and accused Parvez with respect to offence committed under S. 448 IPC;
ii) benefit of doubt is given to accused Dilshad and accused Parvez with respect to offences under S. 380/506 (II) IPC; and
iii) with respect to accused Halima, Aysha and Arfa, there hangs a shadow of doubt with respect their guilt with respect to offences under S. 448/380/506 (II) IPC.
21. Accordingly, accused Dilshad and accused Parvez are convicted with respect to offence committed under S. 448 IPC.
Copy of the judgment be given free of cost to the convicts.
Let copy of this judgment be placed on the district court website.
ANNOUNCED IN OPEN COURT ON 24.11.2018 (VASUNDHARA AZAD) METROPOLITAN MAGISTRATE03 SOUTH EAST DISTRICT SAKET COURTS, NEW DELHI